2020 Supreme(Kar) 1672

IN THE HIGH COURT OF KARNATAKA AT BENGALURU (KALABURAGI BENCH)
Nataraj Rangaswamy, J.
Gurunath Reddy - Appellant
Versus
State Of Karnataka Department Of Co-operation - Respondent
Writ Petition No. 226145 of 2020, 226141 of 2020, 226146 of 2020, 226148 of 2020, 226191 of 2020, 226192 of 2020, 226193 of 2020, 226194 of 2020, 226198 of 2020, 226205 of 2020, 226259 of 2020, 226271 of 2020, 226320 of 2020, 226338 of 2020, 226341 of 2020, 226364 of 2020, 226342 of 2020
Decided On : 16-10-2020

Headnote:

The Court held that the appointment of an administrator under Section 28-A(5) of the Karnataka Co-operative Societies Act, 1959 (Act of 1959) was justified as elections could not be held due to the Covid-19 pandemic and the nationwide lockdown. The Court also held that the term of the elected members of the Board of a co-operative society is five years from the date of election and does not extend beyond that, even if elections are not held within the time specified. The Court further held that the words "Subject to the provisions of Sections 29A and 39A" and "save as otherwise found" in Section 28-A(4) of the Act of 1959 are liable to be read down as redundant in view of Article 243-ZJ of the Constitution of India.

Fact of the Case:

The petitioners, erstwhile elected members of the Board of Primary, Secondary, Federal Societies in the Districts of Yadgiri, Vijayapura, Kalaburagi, Raichur, Bidar and an Apex Co-operative society, challenged the Constitutional validity of Section 28-A(5) and Section 28-B(2) of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as the Act of 1959) on the touchstone of Article 243-ZI and Article 19(1)(c) of the Constitution of India. The petitioners contended that the autonomy of co-operative societies is recognised under the Constitution of India under Article 243ZI and Article 19(1)(c) and thus Section 28-A(5) of the Act of 1959 is a transgression of the autonomy conferred on a co-operative society by the Constitution of India. They also contended that the term of the committee of management of a co-operative society is not five years but is dependent on the conduct of elections to elect a new committee in view of the words subject to the provisions of Sections 29-A and 39-A and save as otherwise found in Section 28-A(4) of the Act of 1959. Thus, one of the petitioners contend that in the facts and circumstances of these cases, the automatic vacation of office of the members of the board, if they failed to make arrangement for election within the time specified under Section 39-A as mandated by Section 28-B of the Act of 1959 as unconstitutional.

Finding of the Court:

The Court held that the appointment of an administrator under Section 28-A(5) of the Act of 1959 was justified as elections could not be held due to the Covid-19 pandemic and the nationwide lockdown. The Court also held that the term of the elected members of the Board of a co-operative society is five years from the date of election and does not extend beyond that, even if elections are not held within the time specified. The Court further held that the words "Subject to the provisions of Sections 29A and 39A" and "save as otherwise found" in Section 28-A(4) of the Act of 1959 are liable to be read down as redundant in view of Article 243-ZJ of the Constitution of India.

Issues: 1. Whether the petitioners have locus standi to challenge the appointment of an administrator? 2. Whether Part-IXB is still a part of the Constitution of India in view of the Judgment of the Gujarat High Court in Rajendra N. Shah's case (supra) and in view of the Judgment of the Apex Court in Kusum Ingots case (supra)? 3. Whether Section 28-A(5) of the Act of 1959 impairs the autonomy of a Co-operative Society conferred on it under Article 243-ZI and whether it violates the fundamental right guaranteed under Article 19(1)(c) of the Constitution of India? Whether Sections 28- A(5) and 28-B of the Act of 1959 are unconstitutional? 4. When the non-conduct of elections to elect members of a Board is a condition precedent for appointment of an Administrator under Section 28-A(5) of the Act of 1959 and when the petitioners had all complied with their responsibility to hold elections, could the Government appoint an administrator on the ground that elections could not be held due to the Covid-19 pandemic? Whether in the facts and circumstances of the case, it was just to appoint an administrator while the Government itself had exempted the compliance of Section 39A of the Act of 1959? Does this amount to approbate and reprobate? 5. Whether, there is no time fixed for holding elections to the members of the Board of a Co-operative Society under Section 39-A of the Act of 1959 and therefore Section 28-A(5) cannot be invoked for appointment of an administrator ? 6. Whether, the term of the elected members of the Board of a co-operative society extends till new members of the Board are elected in view of the words Subject to the provisions of Sections 29A and 39A and save as otherwise found in Section 28-A(4) of the Act of 1959? 7. Whether, the words subject to the provisions of Sections 29A and 39A and save as otherwise found in Section 28-A(4) have any purpose or are they inconsistent with Part IX-B of the Constitution of India and if yes, whether the said words are to be read down? 8. Whether, the petitioners are discriminated vis- -vis the members of the Board of Sugar Co-operative Societies?

Ratio Decidendi: The Court held that the appointment of an administrator under Section 28-A(5) of the Act of 1959 was justified as elections could not be held due to the Covid-19 pandemic and the nationwide lockdown. The Court also held that the term of the elected members of the Board of a co-operative society is five years from the date of election and does not extend beyond that, even if elections are not held within the time specified. The Court further held that the words "Subject to the provisions of Sections 29A and 39A" and "save as otherwise found" in Section 28-A(4) of the Act of 1959 are liable to be read down as redundant in view of Article 243-ZJ of the Constitution of India.

Final Decision: The Court dismissed the writ petitions challenging the Constitutional validity of Sections 28-A(4), 28-A(5) and 28-B of the Act of 1959 and the interpretation that the term of an outgoing members of the Board of management of a co-operative society extends till an incoming board is elected.